Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae in Support of Plaintiffs-Appellants; Correspondence from Wright to Ganucheau; from Pugh to McDuff; from Turner and Silver to Wright

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 89-3654 

RONALD CHISOM, 

1 

9 

1 

1 

1 

1 
1 

Plaintiffs-Appellants, 

and 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

V. 

BUDDY ROEMER, 

Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS . 

DAVID S. TATEL 
ROBERT F. MULLEN 

Co-Chairmen 
NORMAN REDLICH 

Trustee 
BARBARA R. ARNWINE 
FRANK R. PARKER 
BRENDA WRIGHT 
ROBERT B. MCDUFF 

Lawyers' Committee for Civil 
Rights Under Law 
1400 Eye Street, N.W. 
Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

Attorneys for the Lawyers' 
Committee for Civil Rights 
Under Law, Amicus Curiae  

1 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 89-3654 

RONALD CHISOM, 

Plaintiffs-Appellants, 

and 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

V. 

BUDDY ROEMER, et al., 

Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS 

DAVID S. TATEL 
ROBERT F. MULLEN 

Co-Chairmen 
NORMAN REDLICH 

Trustee 
BARBARA R. ARNWINE 
FRANK R. PARKER 
BRENDA WRIGHT 
ROBERT B. MCDUFF 

Lawyers' Committee for Civil 
Rights Under Law 
1400 Eye Street, N.W. 
Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

Attorneys for the Lawyers' 
Committee for Civil Rights 
Under Law, Amicus Curiae  



TABLE OF CONTENTS 

PAGE 

INTEREST OF AMICUS CURIAE   1 

INTRODUCTION AND SUMMARY OF ARGUMENT   2 

ARGUMENT   4 

I. PLAINTIFFS' PROPOSED REDISTRICTING PLANS 
FULLY SATISFY THE REQUIREMENTS OF 
THORNBURG V. GINGLES AND SECTION 2   4 

II. THE DISTRICT COURT EMPLOYED A FAULTY 
ANALYSIS IN CONCLUDING THAT VOTING IS 
NOT RACIALLY POLARIZED IN THE FIRST 
DISTRICT   10 

A. When Polarized Voting Prevents Blacks 
From Electing Candidates Of Choice In 
Black-Versus-White Contests, A Section Two 
Violation Is Established Regardless Of The 
Outcome Of White-Only Elections   10 

B. Black Electoral Success In A Black-Majority 
District Does Not Establish The Ability 
of Blacks To Elect Candidates Of Choice 
In A White-Majority District   15 

CONCLUSION   17 



TABLE OF AUTHORITIES 

CASES: 

Bradford County v. City of Starke, 712 F. Supp. 1523 
(M.D. Fla. 1989)   

Brown v. Thomson, 462 U.S. 835 (1983) 

Campos v. City of Baytown, 840 F.2d 1240 
(5th Cir. 1988), cert. denied, 
109 S.Ct. 3213 (1989)   

PAGE 

13 

5 

13 

Citizens for a Better Gretna V. City of Gretna, 
834 F.2d 496 (5th Cir. 1987), 
cert. denied, 109 S.Ct. 3213 (1989)   13, 15 

City of Mobile v. Bolden, 446 U.S. 55 (1980) OOO 2 

Clark v. Edwards, No. 86-435-A 
(M.D. La. Aug. 15, 1988)   14, 15 

Connor v. Finch, 431 U.S. 407 (1977)   9 

Dillard v. Baldwin County Board of Education, 
686 F. Supp. 1459 (M.D. Ala. 1988)   9 

Dillard v. Baldwin County Commission, 
694 F. Supp. 836 (M.D. Ala.), 
aff'd, 862 F.2d 878 (11th Cir. 1988)   8 

East Jefferson Coalition v. Jefferson Parish, 
691 F. Supp. 991 (E.D. La. 1988), 
appeal pending   13, 15 

Gomez v. City of Watsonville, 863 F.2d 1407 
(9th Cir. 1988), cert. denied, 109 S.Ct. 
1534 (1989)   13 

Hicks v. Miranda, 422 U.S. 332 (1975)   13 

Jeffers v. Clinton, No. H-C-89-00 
(E.D. Ark. Dec. 4, 1989)   9, 13 

Kirksey v. Board of Supervisors of Hinds County, 
554 F.2d 139 (5th Cir.) (en banc) 
cert. denied, 434 U.S. 968 (1977)   8 

Major v. Treen, 574 F. Supp. 325 (E.D. La. 1983)   15 

Mallory v. Eyrich, 707 F. Supp. 947 
(S.D. Ohio 1989)   13 

Mandel V. Bradley, 432 U.S. 173 (1977)   12 

ii 



TABLE OF AUTHORITIES (con't) 

PAGE 

Martin v. Allain, 658 F. Supp. 1183 
(S.D. Miss. 1987)   

McNeil v. City of Springfield, 658 F. Supp. 1015 
(C.D. In. 1987)   

Neal v. Coleburn, 689 F. Supp. 1426 
(N.D. Va. 1988)   

13 

13 

9 

Parnell v. Rapides Parish School Board, 
425 F. Supp. 399 (W.D. La. 1976), 
aff'd, 563 F.2d 180 (5th Cir.), 
cert. denied, 438 U.S. 915 (1978)   15 

Rogers v. Lodge, 458 U.S. 613 (1982)   2 

Smith v. Clinton, 687 F. Supp. 1310 (E.D. Ark.) 
aff'd, 109 S Ct 548 (1988)   11, 12 

Thornburg V. Gingles, 478 U.S. 30 (1986)   passim 

Wallace v. House, 377 F. Supp. 1192 
(W.D. La. 1974), aff'd in part. rev'd in part  
on other grounds, 515 F.2d 619 (5th Cir. 1975), 
vac'd on other grounds, 425 U.S. 947 (1976), 
on remand 538 F.2d 1138 (5th Cir. 1976), 
cert. denied, 431 U.S. 965 (1977)   15 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), 
aff'd, 409 U.S. 1095 (1973)   6 

Westwego Citizens for Better Government V. Westwego, 
872 F.2d 1201 (5th Cir. 1989)   13 

STATUTES: 

Voting Rights Act, § 2, 42 U.S.C. §1973, 
as amended   passim 

iii 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 89-3654 

RONALD CHISOM, 

Plaintiffs-Appellants, 

and 

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, 

V. 

BUDDY ROEMER, 

Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW 
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS 

INTEREST OF AMICUS CURIAE  

The Lawyers' Committee for Civil Rights Under Law is a non-

profit organization established in 1963 at the request of the 

President of the United States to involve leading members of the 

bar throughout the country in the national effort to assure civil 

rights to all Americans. Protection of the equal voting rights 

of all citizens has been an important component of the 

Committee's work. It has provided legal representation to 

litigants in numerous voting rights cases throughout the nation 

1 



over the past twenty-five years, and it has submitted amicus  

curiae briefs in major voting rights •cases before the Supreme 

Court. See Thornburg v. Gingles, 478 U.S. 30 (1986); Rogers v.  

Lodge, 458 U.S. 613 (1982); City of Mobile v. Bolden, 446 U.S. 55 

(1980). 

The present case involves a challenge to multimember 

elections under Section 2 of the Voting Rights Act, 42 U.S.C. 

§1973. The case involves significant issues concerning the 

interpretation and application of Section 2, and may •have far-

reaching ramifications for other voting rights cases. Because of 

the Committee's extensive and ongoing representation of minority 

citizens in the voting rights area, it has a strong interest in 

the outcome of this case and its effect on minority citizens in 

other jurisdictions. 

INTRODUCTION AND SUMMARY OF ARGUMENT  

This case challenges the use of a multimember district to 

elect two Justices of the Louisiana Supreme Court as a violation 

of Section 2 of the Voting Rights Act, 42 U.S.C. §1973, as 

amended. The litigation presents a classic case of unlawful 

dilution of the voting strength of minority citizens. Louisiana 

uses single-member districts to elect all of the members of the 

Louisiana Supreme Court, with the exception of the members from 

the First Supreme Court District. The First District contains 

the largest black population concentration in Louisiana, but is 

2 



structured as a two-member election district in a manner that 

submerges that black population concentration in a majority white 

district. No black Supreme Court justice has been elected to the 

Louisiana Supreme Court in this century. 

The district court entered judgment dismissing plaintiffs' 

claims following trial of the action. While the district court's 

judgment for defendants rests on numerous misconceptions about 

the proper application of Section 2 of the Voting Rights Act, 

this brief limits itself to addressing only two fundamental 

errors that are particularly important to the adjudication of 

Section 2 cases. First, the brief discusses the reasons why the 

district court erred in holding that plaintiffs were foreclosed 

from obtaining relief under Section 2 because the black 

population allegedly is not sufficiently large and geographically 

compact to form a majority in a single-member district. Second, 

the brief addresses the standards employed by the district court 

in analyzing the existence of racially polarized voting, and 

demonstrates that the district court's conclusions are in 

conflict with controlling decisions of the Supreme Court as well 

as of this Court. With respect to all other errors discussed by 

the plaintiffs and plaintiff-intervenor United States in their 

briefs, amicus joins in those briefs and urges reversal on the 

grounds stated there as well. 

3 



ARGUMENT 

I. PLAINTIFFS' PROPOSED REDISTRICTING PLANS FULLY SATISFY 
THE REQUIREMENTS OF THORNBURG V. GINGLES AND SECTION 2. 

The district court erroneously held that plaintiffs' 

proposed redistricting alternatives were unacceptable and that 

plaintiffs therefore could not satisfy the first threshold factor 

set forth in Thornburg v. Gingles, 478 U.S. 30 (1986) -- that the 

minority group must "be sufficiently large and geographically 

compact to constitute a majority in a single-member district." 

478 U.S. at 50 (footnote omitted). The district court's decision 

on this issue, if sustained, would transmute the straightforward 

inquiry called for by Gingles into an all-purpose roadblock to 

relief for Section 2 plaintiffs. 

Plaintiffs' proof included undisputed figures demonstrating 

that the two-member First Supreme Court District could be divided 

into two single-member districts, one of which would consist of 

Orleans Parish and have a black registered voter majority of 53.6 

percent, 1 and the other of which would consist of Jefferson, St. 

Bernard, and Plaquemines Parishes and have a white registered 

1 Louisiana, unlike most states, maintains voter 
registration statistics broken down by race of voter. The 
existence of such records makes it possible for plaintiffs to 
establish in this case that black citizens would constitute a 
majority of the registered voters in the proposed single-member 
district. Such proof is more than adequate to satisfy Gingles' 
requirement that Section 2 plaintiffs establish the potential to 
elect candidates of choice in a proposed single-member district. 
478 U.S. at 50 n.17. Of course, the fact that registered voter 
statistics are available by race in some cases does not mean that 
proof of a black registered voter majority is necessary to make 
out a successful Section 2 claim where such data is unavailable; 
nothing in Gingles or amended Section 2 establishes such a 
requirement. 

4 



voter majority. RE 16 (Table 4). 2 These two districts would 

have total populations of 557,515 and 544,738, respectively. RE 

16 (Table 2). Both districts would therefore be comfortably in 

the middle of the population range of the other existing Supreme 

Court districts. 3 

The district court's criticisms of plaintiffs' proposed 

single-member plan do not remotely justify the holding that 

plaintiffs failed to satisfy the first Gingles factor. First, 

there is no authority for the court's criticism of plaintiffs' 

plan based on its deviations from ideal population size. 4 The 

one-person, one-vote requirement of the Fourteenth Amendment does 

2 "RE" refers to the Record Excerpts filed with plaintiffs' 
brief. 

3 Under plaintiffs' plan, the Supreme Court districts would 
have the following total population rankings (see RE 15-16): 

Fifth District 861,217 
Third District 692,974 
Second District 582,223 
Orleans District 557,515 
Sixth District 556,383 
Jefferson/Plaquemines 
St.Bernard District 544,738 
Fourth District 410,850 

4 The terms "ideal population" or "ideal district" are 
routinely used in one-person, one-vote litigation. See, e.g., 
Brown v. Thomson, 462 U.S. 835, 839 (1983). The terms simply 
refer to the population figure that results from dividing the 
total population in a particular political unit by the total 
number of representatives elected for that political unit. In 
this case, the ideal district size for Louisiana Supreme Court 
districts is 600,843, calculated by taking the total population 
of the state reported in the 1980 United States Census 
(4,205,900) and dividing by the total number of Supreme Court 
justices (seven). RE 17 n. 19. Of course, the term "ideal 
district" in this context refers merely to the mathematical ideal 
and not to any normative ideal. 

5 



not apply to judicial elections in light of the Supreme Court's 

affirmance of Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), 

aff'd, 409 U.S. 1095 (1973). Thus, the district court's 

objections to population inequality in plaintiffs' proposed 

districting alternative have no basis in federal policy. 

The district court's objections cannot be based on state 

policy either. It is undisputed that Louisiana is currently 

content with a Supreme Court districting plan that has a total 

deviation of nearly 75% and an average deviation of 19.55%. RE 

17. Also undisputed is the fact •that the two single-member 

districts proposed by plaintiffs would have deviations from ideal 

population of only -7.2 percent (Orleans district) and -9.3 

percent (Jefferson/Plaquemines/St. Bernard district) -- smaller 

deviations than four of the six existing districts. RE 17. 

Plainly, any state policy which says that a particular population 

deviation is permissible in a districting plan that contains no 

majority black districts, but is impermissible when it emerges 

from a plan that would create a majority black district, would 

not be worthy of deference. Indeed, such a policy would itself 

be discriminatory and subject to challenge under Section 2 of the 

Voting Rights Act. Lack of population equality in plaintiffs' 

proposed plan thus provides no basis for rejecting the plan and 

barring plaintiffs' Section 2 claim. 

The district court also erred in adjudging plaintiffs' 

proposal unacceptable because it would for the first time create 

a one-parish Supreme Court district. That objection simply 

6 



misconstrues the inquiry required by Ginales at the liability 

stage of a Section 2 case. Any redistricting alternative 

proposed by a Section 2 plaintiff will necessarily involve some 

changes in previous state districting practices, but that fact 

hardly suffices to invalidate the plan. Gingles certainly 

articulated no such standard, but merely held that at the 

liability stage a minority group must show that it is 

sufficiently large and geographically compact to constitute a 

majority in a single-member district. Here, plaintiffs' 

undisputed showing that blacks would constitute a majority of the 

registered voters in Orleans Parish, a political unit already 

recognized under state law, more than suffices to meet this 

requirement of Gingles. 5 The fashioning of a specific remedial 

plan, and the weighing of any genuine state policy concerns 

against the necessity of providing a full and complete remedy for 

a Section 2 violation, properly should await the remedial stage 

of the litigation. 

Moreover, there is no substantial evidence that the creation 

of a one-parish Supreme Court district would contravene any 

genuine state "policy." Louisiana currently does not require 

statewide uniformity in its districting arrangements for Supreme 

5 Plaintiffs and the United States also presented evidence 
that an alternative black registered voter majority district 
could be created by combining Orleans Parish with contiguous 
areas of Jefferson Parish. See Pl. Ex. 2; United States Ex. 14. 
The two single-member districts thus created would also have 
population deviations well below the average deviation of the 
current Supreme Court districts. This alternative also complies 
with the requirements of Ginales factor 1. 

7 



Court elections, given that most of the Supreme Court judicial 

districts are single-member districts while the First District 

alone is a multi-member district. Furthermore, no state 

constitutional provision or statute prohibits •the •creation of 

single-parish districts. In addition, as the district court 

noted, the state itself proposed in the court below that a fairly 

drawn plan would include a Jefferson Parish-only district -- a 

configuration that would prevent the creation of a black majority 

district. RE 18-19. Finally, Orleans Parish is already a 

recognized political unit within which numerous elections are 

held, and no state policy appears to be contravened by the fact 

that the adjoining parishes of Jefferson, Plaquemines and St. 

Bernard are not included in such elections. 

In any event, even if it rose to the level of a genuine 

state policy, the previous practice of using multi-parish 

districts for Supreme Court elections simply cannot not carry the 

weight the district court assigned to it. Other types of 

articulated state and local districting policies are not given 

the type of absolute precedence over minorities' voting rights 

that the court extended here. See, e.g., Kirksey v. Board of 

Supervisors of Hinds County, 554 F.2d 139, 151 (5th Cir.) (en 

banc), cert. denied, 434 U.S. 968 (1977) (policy of having county 

supervisory districts with approximately equal road and bridge 

responsibility cannot be given overriding weight "at the expense 

of effective black minority participation in democracy"); Dillard  

v. Baldwin County Commission, 694 F. Supp. 836, 844 (M.D. Ala.), 

8 



aff'd, 862 F.2d 878 (11th Cir. 1988) (policy of preserving pre-

existing political boundaries did not outweigh requirement of 

fashioning an effective remedy for a Section 2 violation); 

Jeffers v. Clinton, No. H-C-89-00, p. 24 (E.D. Ark. Dec. 4, 1989) 

(three-judge court) (same); Neal v. Coleburn, 689 F. Supp. 1426, 

1437 (N.D. Va. 1988) (lack of adherence to ideal standard of 

compactness does not require rejection of proposed remedial plan 

in Section 2 case); Dillard v. Baldwin County Board of Education, 

686 F. Supp. 1459 (M.D. Ala. 1988) (same). Cf. Connor v. Finch, 

431 U.S. 407, 419-420 (1977) (in case to which one-person, one-

vote requirement applies, state policy of maintaining county 

lines is outweighed by need to achieve federal requirement of 

population equality). 

Rejection of a Section 2 claim on grounds that plaintiffs 

cannot satisfy the first Gingles factor of population size and 

compactness is a particularly serious step because it forecloses 

relief even where plaintiffs can demonstrate that voting is 

severely polarized along racial lines and that minorities have no 

opportunity to elect candidates of choice under the challenged 

system. The rationales advanced by the district court for 

rejecting plaintiffs' plan are wholly inadequate to justify such 

a step in this case, and the district court's decision should be 

reversed on this ground. 

9 



II. THE DISTRICT COURT EMPLOYED A FAULTY ANALYSIS IN 
CONCLUDING THAT VOTING IS NOT RACIALLY POLARIZED IN THE 
FIRST DISTRICT. 

At trial, plaintiffs presented overwhelming and largely 

undisputed evidence that voting in black-versus-white judicial 

contests within the First District is heavily polarized by race, 

black candidates receiving consistently high levels of support 

from black voters and consistently low levels of support from 

white voters. See Plaintiffs' Brief, pp. 8-9, 34-36; Brief of 

United States, pp. 6-14, 28-32; RE 55-57. The district court, 

however, virtually ignored this evidence, focusing instead on 

elections involving only white candidates. The few black-versus-

white contests discussed by the court consisted primarily of 

races in Orleans Parish where, unlike in the First District, 

blacks constitute a majority of the registered voters. RE 16. 

The court's conclusions about racially polarized voting in 

the First District are fundamentally flawed because of its 

emphasis on white-only elections and the success of black 

candidates in majority-black Orleans Parish. The legal errors in 

each of these aspects of the court's decision are discussed in 

the following sections. 

A. When Polarized Voting Prevents Blacks From Electing 
Candidates Of Choice In Black-Versus-White Contests, A 
Section Two Violation Is Established Regardless Of The 
Outcome Of White-Only Elections. 

In light of controlling Supreme Court decisions as well as 

precedent in this Circuit, it is no longer an open question 

whether black-versus-white elections are the proper focus of 

10 



analysis in determining the existence of racially polarized 

voting. The Supreme Court in Thornburg v. Gingles analyzed only 

black-versus-white contests in concluding that plaintiffs had 

satisfied their burden of proving legally sufficient polarized 

voting in North Carolina legislative elections. 478 U.S. at 58-

61. Moreover, the Supreme Court was squarely presented with the 

question of whether polarization in black-versus-white contests 

is the proper focus under Section 2 when the Court summarily 

affirmed the decision of a three-judge court in a later case, 

Smith v. Clinton, 687 F. Supp. 1310 (E.D. Ark.) (three-judge 

court), aff'd, 109 S.Ct. 548 (1988). 

In Smith v. Clinton, the court found that voting was heavily 

polarized in black-versus-white contests. The defendants 

countered with proof that in 54 of 65 races analyzed, primarily 

consisting of white-on-white contests, the candidate receiving a 

majority of the black vote placed first. Defendants' evidence 

further showed that the first-place finisher in all of the 

elections analyzed had received, on average, a greater share of 

the black vote than of the white vote. 687 F. Supp. at 1316. 

The Smith court nevertheless rejected defendants' contention 

that this pattern of success for black-supported candidates in 

white-only elections negated plaintiffs' proof of polarization in 

black-versus-white elections, stating: "We find . . that there 

is racially polarized voting in the district, despite the fact 

that blacks and whites often prefer the same candidate in races 

involving only whites." Id. at 1317. To hold otherwise, the 

11 



court observed, would improperly relegate blacks to a system in 

which N[c]andidates favored by blacks can win, but only if the 

candidates are white." Id. at 1318. 

The defendants appealed to the Supreme Court, including in 

their jurisdictional statement the following question: 

Whether the court below improperly based its finding 
that the multimember legislative district violated 
Section II (sic] of the Voting Rights Act solely upon 
evidence of racially polarized voting in eight black 
versus white elections and upon the fact that no black 
had previously won a seat in the Arkansas House of 
Representatives from the district in issue. 6 

A unanimous Supreme Court summarily affirmed the judgment of the 

three-judge court. 109 S.Ct. 548 (1988). 

The Supreme Court's summary affirmance is binding on lower 

courts presented with the same issue. As the Court stated in 

Mandel v. Bradley, 432 U.S. 173, 176 (1977): • 

Summary affirmances . . . without doubt reject the 
specific challenges presented in the statement of 
jurisdiction and do leave undisturbed the judgment 
appealed from. They do prevent lower courts from 
coming to opposite conclusions on the precise issues 
presented and necessarily decided by those actions. 

The summary affirmance in Smith falls squarely within this rule. 

In Smith, the issue of whether black-versus-white elections are 

the proper focus of inquiry in examining racially polarized 

voting was clearly presented in the jurisdictional statement and 

necessarily had to be decided in plaintiffs' favor in order for 

the Court to affirm the judgment. Thus, Smith's holding is 

6 A copy of the jurisdictional statement is attached to this 
brief as Appendix A. 

12 



binding on this issue. See also Hicks v. Miranda, 422 U.S. 332, 

343-45 (1975). 

Even prior to the Supreme Court's affirmance of Smith, this 

Court had squarely held that the existence of racially polarized 

voting is properly determined by analysis of black-versus-white 

contests. Campos V. City of Baytown, 840 F.2d 1240, 1245 (5th 

Cir. 1988), cert. denied, 109 S.Ct. 3213 (1989) ("the district 

court properly focused only on those races that had a minority 

member as a candidate"); Citizens for a Better Gretna v. City of 

Gretna, 834 F.2d 496, 503-04 (5th Cir. 1987), cert. denied, 109 

S.Ct. 3213 (1989). This Court elaborated on the basis for this 

holding in Westwego Citizens for Better Government v. Westwego, 

872 F.2d 1201 (5th Cir. 1989): 

As we noted in the Gretna case, when there are only 
white candidates to choose from it is 'virtually 
unavoidable that certain white candidates would be 
supported by a large percentage of . . . black voters.' 
834 F.2d at 502. Evidence of black support for white 
candidates in an all-white field, however, tells us 
nothing about the tendency of white bloc voting to 
defeat black candidates. Id. 

872 F.2d at 1208 n.7. 7 The district court disregarded these 

7 See also Jeffers v. Clinton, pp. 27-28 (analysis of 
polarized voting should focus on black-versus-white contests); 
Bradford County v. City of Starke, 712 F. Supp. 1523, 1540 (M.D. 
Fla. 1989) (same); Mallory v. Eyrich, 707 F. Supp. 947, 951 (S.D. 
Ohio 1989) (same); East Jefferson Coalition v. Jefferson Parish, 
691 F. Supp. 991 (E.D. La. 1988), appeal pending (same); Martin 
v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. 1987); McNeil V.  
City of Springfield, 658 F. Supp. 1015, 1030 (C.D. Ill. 1987) 
(same); Gomez v. City of Watsonville, 863 F.2d 1407 (9th Cir. 
1988), cert. denied, 109 S.Ct. 1534 (1989) (without discussing 
issue, affirms portion of district court decision which found 
racially polarized voting based on analysis of Hispanic-versus-
white contests only). 

13 



controlling authorities, making no mention of their discussion of 

the relative probative value of black-versus-white and white-

versus-white elections. 

Finally, the district court's finding of no racially 

polarized voting in this case, based on analysis of white-only 

elections, stands in sharp contrast to the district court's 

findings in Clark v. Edwards, No. 86-435-A (M.D. La. Aug. 15, 

1988), a Section 2 action challenging the at-large election of 

district court, court of appeal, and family court judges in 

numerous Louisiana districts and parishes, including parishes 

within the First Supreme Court District. In Clark, the district 

court found racially polarized voting in 47 out of 52 black-white 

judicial elections analyzed, which included 30 black-white 

elections in Orleans and Jefferson Parishes. Clark, Mem. 

Decision at p. 26. These Orleans and Jefferson elections are 

among the elections listed in Table 3 of the appendix to the 

district court's opinion in this case (RE 55-57). 

Thus, virtually the same evidence concerning black-versus-

white judicial contests within the First Circuit was presented to 

the district courts in this case and in Clark. The Clark court, 

however, in deference to this Court's precedents, correctly held 

that this evidence demonstrated racially polarized voting and 

that defendants' evidence concerning white-only elections could 

not negate the showing of racially polarized voting in black-

14 



versus-white contests. Id. at p. 31. 8 The Clark decision thus 

underscores the error committed by the district court in this 

case through its misplaced emphasis on white-only elections. 

For all of these reasons, the district court's reliance on 

white-only elections for its conclusion that black voters can 

elect candidates of choice to the Supreme Court in the First 

District was improper and requires reversal. 

B. Black Electoral Success In A Black-Majority District 
Does Not Establish The Ability of Blacks To Elect 
Candidates Of Choice In A White-Majority District. 

The black-versus-white elections which the district court 

did discuss were confined primarily to elections in Orleans 

Parish where blacks have had some electoral success. RE 34-37, 

43-44. Unfortunately, the court drew the wrong conclusion from 

these elections because it failed to recognize that Orleans 

Parish has a black registered voter majority, whereas the First 

District which is under challenge here has a clear white majority 

of approximately 68 percent. RE 16. The undisputed proof in 

8 Indeed, the district court's finding of no racially 
polarized voting in this case stands in isolation from the many 
cases finding racially polarized voting in numerous Louisiana 
jurisdictions. See, in addition to Clark, Major v. Treen, 574 F. 
Supp. 325, 337-38 (E.D. La. 1983) (three-judge court); Citizens  
for a Better Gretna v. City of Gretna; East Jefferson Coalition  
v. Parish of Jefferson; Parnell v. Rapides Parish School Board, 
425 F. Supp. 399, 405 (W.D. La. 1976), aff'd, 563 F.2d 180 (5th 
Cir.), cert. denied, 438 U.S. 915 (1978); Wallace V. House, 377 
F. Supp. 1192, 1197 (W.D. La. 1974), aff'd in part, rev'd in part  
on other grounds, 515 F.2d 619 (5th Cir. 1975), vac'd on other 
grounds, 425 U.S. 947 (1976), on remand 538 F.2d 1138 (5th Cir. 
1976), cert. denied, 431 U.S. 965 (1977). 

15 



this case shows that black candidates have never received white 

votes in sufficient numbers to obtain a majority of the votes in 

the First District. See Plaintiffs' Brief, pp. 40-41. 

Obviously, the hypothesis that voting is racially polarized 

is only strengthened, not weakened, by proof that black 

candidates have greater success in black-majority districts than 

in white-majority districts. 9 Thus, black electoral success in 

Orleans Parish can in no way establish the ability of blacks to 

elect Supreme Court candidates of choice in the First District, 

and the district court clearly erred in so holding. 

9 Even in Orleans Parish the evidence showed that black 
electoral success in judicial elections was far from monolithic; 
of 32 black-white judicial elections in Orleans Parish listed in 
Table 3 of the Appendix to the court's opinion, only six produced 
a winning black candidate. RE 55-57. 

16 



CONCLUSION  

For the foregoing reasons, and on the basis of the 

authorities cited, the district court's ruling in favor of 

defendants should be reversed. 

Respectfully subm*tted, 

/ i /. , , 

DAVID S. TATEL 
ROBERT F. MULLEN 

Co-Chairmen 
NORMAN REDLICH 
Trustee 

BARBARA R. ARNWINE 
FRANK R. PARKER 
BRENDA WRIGHT 
ROBERT B. MCDUFF 

Lawyers' Committee for Civil 
Rights Under Law 
1400 Eye Street, N.W. 
Suite 400 
Washington, D.C. 20005 
(202) 371-1212 

Attorneys for the Lawyers' 
Committee for Civil Rights 
Under Law, Amicus Curiae  

17 



APPENDIX A 

No   

IN THE 

SUPREME COURT OF THE UNITED STATES 
• OCTOBER TERM, 1988 

BILL CLINTON, GOVERNOR OF ARKANSAS, 
BILL MCCUEN, SECRETARY OF STATE OF ARKANSAS, AND 
STEVE CLARK, ATTORNEY GENERAL OF ARKANSAS, 
IN THEIR RESPECTIVE OFFICIAL CAPACITIES AND IN 
THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE 
BOARD OF APPORTIONMENT OF THE STATE OF ARKANSAS', 
LILBURN W. CARLISLE, CHAIRPERSON OF THE ARKANSAS 
STATE COMMITTEE OF THE DEMOCRATIC PARTY; 
TOMMYE S. GIVENS, SECRETARY OF THE ARKANSAS 
STATE COMMITTEE OF THE DEMOCRATIC PARTY; THE 
DEMOCRATIC CENTRAL COMMITTEE OF CRITTENDEN 
COUNTY, ARKANSAS, ITS OFFICERS AND MEMBERS; THE 
REPUBLICAN CENTRAL COMMITTEE OF CRITTENDEN 
COUNTY, ARKANSAS, ITS OFFICERS AND MEMBERS; AND 
THE ELECTION COMMISSION OF CRITTENDEN COUNTY, 
ARKANSAS, ITS OFFICERS AND MEMBERS Petitioners 

VS. 

ELBERT SMITH, VICKIE MILES ROBERTSON, 
JOHNNY MAE WILLIAMS, MAXINE BOHANNON, CAROLYN 
STEPHENSON, ESTER CAGE, FAYE W ILLIAMS, DARRICK 
HANDY, ANTHONY R. HOLMES, CAROL HOLMES, 
AND MAGGIE HALL  Respondents 

APPEAL FROM 
THE UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF ARKANSAS 
WESTERN DIVISION 

JURISDICTIONAL STATEMENT 

JOHN STEVEN CLARK 
Attorney General 

FRANK J. W ILLS, III 
Assistant Attorney General 
TIM HUMPHRIES 
Assistant Attorney General 
200 TOWER BLDG., 4TH & CENTER 
• LITTLE Rom AR 72201 
KENT RuBENS 
Attorney at Law 
P.O. Box 768 
WEST MEMPHIS, AR 72301 

Attorneys for Petitioners 

ARKANSAS LEGISLATIVE DIGEST, INC. 



QUESTIONS PRESENTED 

I. 

WHETHER THE COURT BELOW IMPROPERLY PER-

MITTED A CLAIM UNDER SECTION II OF THE 

VOTING RIGHTS ACT OF 1965, AS AMENDED, 42 U.S.C. 

§1973, TO BE MAINTAINED AGAINST ONE DISTRICT 

OF A STATEWIDE ELECTION SYSTEM AS DISTIN-

GUISHED FROM THE ENTIRE SYSTEM ITSELF. 

WHETHER THE COURT BELOW IMPROPERLY 
EXPEDITED THIS ACTION AND CONDUCTED A 

TRIAL ON THE MERITS LESS THAN THREE AND ONE 

HALF MONTHS AFTER PLAINTIFFS FILED THEIR 
COMPLAINT, THUS DEPRIVING PETITIONERS OF AN 

OPPORTUNITY TO PREPARE ADEQUATELY. 

WHETHER THE COURT BELOW IMPROPERLY BASED 

ITS FINDING THAT THE MULTIMEMBER LEGISLA-

TIVE DISTRICT VIOLATED SECTION II OF THE 

VOTING RIGHTS ACT SOLELY UPON EVIDENCE OF 
RACIALLY POLARIZED VOTING IN EIGHT BLACK 

VERSUS WHITE ELECTIONS AND UPON THE FACT 
THAT NO BLACK HAD PREVIOUSLY WON A SEAT IN 
THE ARKANSAS HOUSE OF REPRESENTATIVES 

FROM THE DISTRICT IN ISSUE. 

IV. 

WHETHER THE COURT IMPROPERLY VOIDED THE 

MARCH 8, 1988 PRIMARY ELECTION AND ORDERED A 

SPECIAL PRIMARY ELECTION, WHICH IS TO BE 
HELD ON SEPTEMBER 20, 1988. WHEN THERE WAS NO 



11 

EVIDENCE OF RACIAL DISCRIMINATION IN THE 
ELECTORAL PROCESS IN QUESTION AND THERE 
WAS NO EVIDENCE OF LOW VOTER PARTICIPATION 

IN THE BLACK COMMUNITY. 

V. 

WHETHER THE COURT BELOW IMPROPERLY 
ADDED NEW PARTIES DEFENDANT, SUA SPONTE, IN 

ITS JULY 1, 1988 JUDGMENT WHEN THOSE NEW 
DEFENDANTS HAD NOT PARTICIPATED IN ANY OF 

THE PROCEEDINGS PRIOR TO THE ENTRY OF 

JUDGMENT. 

PARTIES TO THE PROCEEDING 

In addition to the parties listed in the caption of this 

action, the following are parties to this proceeding: 

Democratic Central Committee of Crittenden County, 

Arkansas: Solon Anthony, Howard Atkins, Primo 
Baioni, Jimmy Barham, Earl Beck, Al Boals, Cy Bond, 
Darla Brasfield, 011ie Brown, Milio Brunetti, Buddy 

Burgos, John Criner, Zelma Danton, Berrell Fair, Frank 
Fogleman, John Gregson, Frank Hill, Paul Matthews, 

Paul O'Neal, June Paudert, MacCRay, Marvin Rogers, 
Mike Sample, Dave Thomas, Charlie Wah, Erma Whit-

acre, and Marge Woolfolk. 

Republican Central Committee of Crittenden County, 

Arkansas: Joe Baker and Mrs. Barbara Dodge. 

Election Commission of Crittenden County, Arkansas: 

Joe Baker, Kent Rubens, and David Thomas. 



CERTIFICATE OF SERVICE  

I hereby certify that I have this day mailed two copies of 

the foregoing brief to the following counsel: 

Judith Reed 
NAACP Legal Defense and 
Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Roy Rodney, Jr. 
McGlinchey, Stafford, Mintz, 
Cellini & Lang 

643 Magazine Street 
New Orleans, LA 70130 

William P. Quigley 
901 Fulton Place, Suite 119 
New Orleans, LA 70130 

Ronald L. Wilson 
310 Richards Building 
837 Gravier Street 
New Orleans, LA 70112 

Jessica Dunsay Silver 
Irving Gornstein 
U.S. Department of Justice 
P.O. Box 66078 
Washington, D.C. 20035-6078 

Robert G. Pugh, Sr., Esq. 
330 Marshall Street 
Suite 1200 
Shreveport, LA 71101 

/ 
This the   day of January, 1990. 

William J. Guste, Jr. 
Attorney General 
Louisiana Department 
of Justice 

234 Loyola Avenue 
Suite 700 
New Orleans, LA 71101 

George M. Strickler 
639 Loyola Street 
Suite 1075 
New . Orleans, LA 70113 

Peter J. Butler 
201 St. Charles AVenue 
35th Floor 
New Orleans, LA 70170 

Moon Landrieu 
717 Girod Street 
New Orleans, LA 70130 

"Th 

Brenda Wright 



• Iva 
LAWYERS' COMMI [lEE 
FOR CIVIL RIGHTS UNDER LAW 

SUITE 400 • 1400 EYE STREET, NORTHWEST • WASHINGTON, D.C. 20005 • PHONE (202) 371-1212 

CABLE ADDRESS: LAWCIV, WASHINGTON, D.C. 
TELEX: 205662 SAP UR 
FACSIMILE: (202) 842-3211 

January 2, 1990 

Honorable Gilbert F. Ganucheau 
Clerk of the Court 
United States Court of Appeals 
for the Fifth Circuit 

600 Camp Street 
New Orleans, Louisiana 70130 

Re: Chisom and U.S. V. Roemer 
No. 89-3654  

Dear Mr. Ganucheau: 

Enclosed please find for filing seven copies of the brief 
amicus curiae of the Lawyers' Committee for Civil Rights Under 
Law, filed in support of the plaintiffs-appellants in the above-
captioned case. The consents of the parties to the filing of the 
brief are enclosed. 

Very truly yours, , 

Brenda Wright 

Enclosures 
cc: All Counsel 



• g6 a ge 
/ 6 .yaw 

t9fizte, 2100, 55,3 e/x-ez,d. t9gie-Z 

Zazariza, 7110/-5502 

g20/,„w 
December 13th, 1989 

Robert B. McDuff, Esquire 
Lawyer's Committee for Civil 

Rights Under Law 
Suite 400 
1400 Eye Street Northwest 
Washington D.C. 20005 

Re: Chisom and U.S. vs. Roemer, et al 
89-3654 

Dear Mr. McDuff: 

This will acknowledge and confirm that I have 
no objection to an amicus curiae being filed by you on 
behalf of the Lawyer's Committee for Civil Rights Under 
Law. 

Yours4 very truly, 

Robert G. Pugh 

RGP/mp 

cc: Ms. Joan Perkins, Case Manager 
Clerk's Office, United States Court 
of Appeals for the Fifth Circuit 

(ii) 227-2270 nbevfre- (i/(5) 227-2275 



12/28/89 13:04 22202 633 2490 DOJ.CRD.APP. a002 

• U.S. Depliment of Justice 

Civil Rights Division 

AppeC=esam 

P.O. Bar 66C78 

Warkingrost, D.0 200154078 

December 28, 1989 

ITs. Brenda Wright 
Lawyers Committee for civil Rights 
Under Law 

1400 I Street, N.W. 
Suite 400 
Washington, D.C. 20005 

Re: Chisom and United States V.  Roemer, No. 89-3654  

Dear MS. Wright: 

On behalf of 
hereby consent to 
Lawyers Committee 

the 
the 
for 

United States, appellant in this action, we 
filing of a brief as amicus curiae by the 
Civil Rights Under Law on January 2, 1990. 

Yours truly, 

James P. Turner 
Acting Assistant. Attorney General 

Civil Rights Division 

1 T"*....S.s  

By: jt.,W0_, 3Lef' 

Jessica Dunsay Silver 
Deputy Chief 

Appellate Section 



• RECEly7 NOV 2 7 1989 

November 16, 1989 

Mr. Robert B. McDuff 
Lawyers' Committee for Civil Rights 

Under Law 
Suite 400 
1400 Eye Street, N.W. 
Washington, D.C. 20005 

Re: Chisom v. Roemer 
No. 89-3654 

Dear Mr. McDuff: 

This letter will confirm that 
plaintiffs-appellants consent to the filing 
of an amicus brief in the Fifth Circuit by 
the Lawyers' Committee. 

Very truly yours, 

AL,6-100 

.6dith Reed 

JR:aa 

NINETY NINE HUDSON STREET, 16th FLOOR • (212) 219-1900 • NEW YORK, N.Y. 10013